Wow.. Now I can Marry Him

[The_BlauerDragon]

Whether it should be legal is an entirely different question from whether it is required by the Constitution.

Some people look to the constitution and say "The Constitution does not expressly guarantee X, therefore we should not allow it." I prefer to look at the constitution and say "The Constitution does not expressly forbid X, therefore it should be allowed." It's a matter of interpretation.

[Former Lord of Winterfell]

Some people look to the constitution and say "The Constitution does not expressly guarantee X, therefore we should not allow it." I prefer to look at the constitution and say "The Constitution does not expressly forbid X, therefore it should be allowed." It's a matter of interpretation.

That's more of a fundamental rights argument than an equal protection argument. In terms of "rights" generally, there is a difference between things the federal government does not have the power to do, and things it and state governments are expressly prohibited from doing. If this was a case of the federal government outlawing gay marriages, I think that would be unconstitutional because the feds have no power to regulate that.

[TrackerNeil]

Well, they could, but I think that would be wrong. A homosexual is permitted to marry under the exact same laws as a heterosexual; that is, a homosexual may marry a person of a different gender, so the law is the same for everyone. Nobody is permitted to marry a person of the same gender, and that prohibition is applied to all citizens equally.

And while who you are attracted to may not be a "choice", whom you choose to marry is. Therefore, I see this equal protection argument as one revolving around conduct or actions, not status, and that's the basis on which I think the majority, or at least the plurality, will make its ruling.

The same argument could be made in favor of miscegenation laws. Everyone is free to marry someone of the same race, or religion, and that law could be applied to all races and religions equally. I suspect, however, you would reject such reasoning.

[TrackerNeil]

The law clearly discriminates between relationships it will recognize, and relationships it will not recognize. But that's not unconstitutional.

You're so certain of this, aren't you? At the end of the day, what's constitutional is what the Supreme Court says is constitutional. I don't have much hope that SCOTUS will do the right thing on this specific issue, but at some point it will turn around on same sex marriage just as it turned around on sodomy laws. Oh yes.

[LindaElane]

I'm moving this from the US politics thread at Terra's request and because it is good for this go have its own thread. Warning: it might be confusing to those who have not read the several pages already up on the topic over there.

I think a fair reading of the 14th amendment compels the conclusion that the government cannot have different laws for different races. That's why I think Plessy was wrongly decided, and frankly, that's a common position among people generalized characterized as "judicial conservatives".

The thing with Brown is that the majority thought it important that the opinion be unanimous, so they didn't say "separate but equal" was flat wrong. If they had, Jim Crow would have ended that day. They limited it to education because they could get a unanimous decision if they just limited it to schools.

That makes a lot of sense. However, consider that the congress in the time of Plessy, 1896, write laws to segregate DC schols and that at the time it was no problem.

That is because (heres what I learned today) the Warren court statement that "separate schools are inherently unequal" refers to the fact that over time people had seen that placing "Negro" (the decisions wording) students in separate schools was commonly seen as labeling them as inferior and thus they internalized a negative self-image and did not learn as much. Brown was compilation of cases, there were actually five cases heard at once, in the Kansas case, the schools were found to be perfectly equal i.e., same facilities, books, teacher training etc. But that did not matter because of the effect labeling was found to have on students.

Thus, I see that the court did not strike down "separate but equal" in Brown. It simply ruled that segregated schools could not be equal.

Ok, apply this to gay marriage. Has our understanding of the labels "separate but equal" progressed? ...in this case marriage and gay civil unions are separate but said to be equal.....Do we now see that they are not for precisely the same reason the supreme court held that separate schools were not equal? It is because it presumes inferiority of same sex unions when they cannot be called marriage but must be called some other separate but unequal term.

Right?

[Former Lord of Winterfell]

The same argument could be made in favor of miscegenation laws. Everyone is free to marry someone of the same race, or religion, and that law could be applied to all races and religions equally. I suspect, however, you would reject such reasoning.

Actually, I think the best comparison is miscegenation laws. Given the express racial background of the 14th amendment, I think the result in Loving was probably correct because that law contained a racial classification on its face. But I do think that's the strongest argument.

You're so certain of this, aren't you? At the end of the day, what's constitutional is what the Supreme Court says is constitutional. I don't have much hope that SCOTUS will do the right thing on this specific issue, but at some point it will turn around on same sex marriage just as it turned around on sodomy laws. Oh yes.

I'm not sure what you mean by me being "certain" of that. I think it's the soundest reasoning, if that's what you mean. I don't think the Supreme Court will turn around on gay marriage, though I think the vast majority of states eventually will. And I think the argument for gay marriage is stronger than the argument for sodomy laws.

I don't buy the "fundamental right" constitutional argument at all, even for heterosexual marriage. I think if a state were to choose not to recognize any marriages at all, of any kind, it should be allowed to do that under the Constitution. Where in the Constitution are states required to perform/recognize marriages?

But if you view marriage as a fundamental right in the constitutionally-mandated sense, then it would be unconstitutional for a state just to say that it's a relic of a religious age, or more headache than it's worth, whatever, and it would be required to perform marriages. I think that's absurd, and I can't find anything in the Constitution remotely suggesting that. I think too many people conflate something that they think is a "right" in the moral sense with what the Constitution actually says. And of course, one reason for that is that people have forgotten that the federal government is supposed to be one limited powers anyway. So while I don't think there is a "right" to marriage under the Constitution, I also think Congress has no power to regulate marriage generally, so it is a protected right in that sense.

Lawrence was based on a very weird sort of fundamental right analysis, so I think it's a bad decision for that reason. The equal protection argument for gay marriages seems stronger to me, though my guess is you're going to see a flip-flop in terms of results from Kennedy from Lawrence to this case, if it makes it that far. Kennedy is a pretty results-oriented guy, and my guess is that he's more comfortable with the idea of protecting freedom of sex than he is in permitting gay marriages.

[Former Lord of Winterfell]

Ok, apply this to gay marriage. Has our understanding of the labels "separate but equal" progressed? ...in this case marriage and gay civil unions are separate but said to be equal.....Do we now see that they are not for precisely the same reason the supreme court held that separate schools were not equal? It is because it presumes inferiority of same sex unions when they cannot be called marriage but must be called some other separate but unequal term.

Right?

I honestly don't see the comparison. I don't think gay civil unions are truly "equal" to marriage. I support them, but I don't think there's a constitutional requirement even for civil unions, whereas everyone acknowledged that black children had the right to go to at least some school if white kids did.

Although I don't believe that a free public education is a constitutional right either.

[Galactus]

The law clearly discriminates between relationships it will recognize, and relationships it will not recognize. But that's not unconstitutional.

Only if there is a rational basis for said discrimination.

Which according to this court, in this case, there isn't.

[TrackerNeil]

But if you view marriage as a fundamental right in the constitutionally-mandated sense, then it would be unconstitutional for a state just to say that it's a relic of a religious age, or more headache than it's worth, whatever, and it would be required to perform marriages.

I don't view marriage as a fundamental right, but I think that limiting marriage to opposite sex couples serves no state interest and is motivated purely by bigotry. I don't think government should be permitted to shape policy based on bigotry and, really, neither does anyone else. Right now you have folks who have convinced themselves that there are some valid, rational interests served in restricting marriage to opposite sex couples, but of course when you press them on it they can't really articulate a single one. They either point out the unchanging tradition of marriage (false), or the purpose of marriage as procreation (false), or some other hare-brained idea that doesn't stand up to scrutiny. That being the case, I have zero respect for the "defenders" of marriage, who can't say exactly what they're defending marriage against other than "stuff we just don't like."

[Former Lord of Winterfell]

Only if there is a rational basis for said discrimination.

Which according to this court, in this case, there isn't.

I said earlier that I think the entire premise of the rational basis test is ridiculous. Either a law is unconstitutional, or it's not, regardless of the questioning of motives that is really what the so-called rational basis test is about. The idea that you can go into the heads of all the voters in the state and determine what their basis was for voting for this referendum is ridiculous, and not a proper subject for any court. That being said, I think the easiest part of an opinion overturning this to write will be showing how it has a rational basis. Hell, I think it's quite possible they'll just say that the test doesn't apply to referendums at all because determining the basis on which people cast their votes is impossible, and that you have to assume that their "basis" was rational.

[TrackerNeil]

I said earlier that I think the entire premise of the rational basis test is ridiculous. Either a law is unconstitutional, or it's not, regardless of the questioning of motives that is really what the so-called rational basis test is about. The idea that you can go into the heads of all the voters in the state and determine what their basis was for voting for this referendum is ridiculous, and not a proper subject for any court.

::Ducks in anticipation of one of the board lawyers pointing out SCOTUS opinions in which the court took rational basis into account::

[Former Lord of Winterfell]

I don't view marriage as a fundamental right, but I think that limiting marriage to opposite sex couples serves no state interest....

Well, that's an interesting point, and interesting (and I think legally correct as well) phrasing because it goes back to another recent thread on law and morality. What, exactly, is a "legitimate state interest?" Is advancing the majority's moral views a "legitimate state interest"? That sounds objectionable, but I think the answer has to be yes. What's the "logical" or "rational" argument against live sex on public street corners. Ultimately, the objection to that could be characterized as just moral prudishness or religious beliefs. Does that mean there is no "legitimate state interest" in regulating it, and that we should have a constitutional right to engage in that? For that matter, saying that everyone is entitled to health care is a fundamentally moral question, isn't it? Morality permeates our entire legal system.

Saying that public morality, whether based on religion or not, is a sufficient justification for a law does NOT mean that majority morality trumps everything, and it doesn't trump anything expressly protected by the Constitution. But I don't think a rational basis test that excludes morality as a rational basis has any place in determining what is protected by the Constitution.

::Ducks in anticipation of one of the board lawyers pointing out SCOTUS opinions in which the court took rational basis into account::

Heh. Only a very few of those, and in those cases, it's arguable that what the court really applied was a rational basis test. But even so, there were dissenters in those cases and I personally find that reasoning more persuasive, basically because I think the idea of courts determining the motive for the passage of laws is ludicrous.

[LindaElane]

I honestly don't see the comparison. I don't think gay civil unions are truly "equal" to marriage. I support them, but I don't think there's a constitutional requirement even for civil unions, whereas everyone acknowledged that black children had the right to go to at least some school if white kids did.

Although I don't believe that a free public education is a constitutional right either.

OK, perfect. You don't believe that a free public education is a constitutional right (I don't see it in the constitution either). However, you acknowledge that equal protection is violated if only some kids can go to a neighborhood public school, and others are excluded on a basis such as race.

Should state schools be able to exclude homosexual students, or does that violate equal protection?

If you answer that homosexual students can't be excluded from state schools on the basis of sexual orientation, then how can they be excluded from state marriage?

(And I think the argument that they "can" marry a person of the opposite sex is disingenuous. Were gay marriage legal, I would not be capable of voluntarily marrying a person of the same sex, so why should we tell gay people that they can marry a person of the opposite sex.)

[Tempra]

Whether it should be legal is an entirely different question from whether it is required by the Constitution.

I think this is a common problem when discussing an issue like gay marriage from a legal perspective. It divides people with a legal background from people without a legal background. There are many rights that should be legal but that are not Constitutionally required. The Constitution in fact requires *very* little in the grand scheme of things.

[Former Lord of Winterfell]

OK, perfect. You don't believe that a free public education is a constitutional right (I don't see it in the constitution either). However, you acknowledge that equal protection is violated if only some kids can go to a neighborhood public school, and others are excluded on a basis such as race.

Yes.

Should state schools be able to exclude homosexual students, or does that violate equal protection?

No.

If you answer that homosexual students can't be excluded from state schools on the basis of sexual orientation, then how can they be excluded from state marriage?

Because the former is barring them from engaging in unrelated conduct based on their individual status. The other is state validation of certain actions or relationships. For example, I do think it would be lawful, though repugnant, for a state to bar students who engage in homosexual sex. But not because they "are" a homosexual.

(And I think the argument that they "can" marry a person of the opposite sex is disingenuous. Were gay marriage legal, I would not be capable of voluntarily marrying a person of the same sex, so why should we tell gay people that they can marry a person of the opposite sex.)

Because it's a law, so the question is one of legality. Just because a person wants to make a different choice than the law permits does not make the law violative of equal protection.

[TrackerNeil]

Well, that's an interesting point, and interesting (and I think legally correct as well) phrasing because it goes back to another recent thread on law and morality. What, exactly, is a "legitimate state interest?" Is advancing the majority's moral views a "legitimate state interest"? That sounds objectionable, but I think the answer has to be yes. What's the "logical" or "rational" argument against live sex on public street corners. Ultimately, the objection to that could be characterized as just moral prudishness or religious beliefs. Does that mean there is no "legitimate state interest" in regulating it, and that we should have a constitutional right to engage in that? For that matter, saying that everyone is entitled to health care is a fundamentally moral question, isn't it? Morality permeates our entire legal system.

Saying that public morality, whether based on religion or not, is a sufficient justification for a law does NOT mean that majority morality trumps everything, and it doesn't trump anything expressly protected by the Constitution. But I don't think a rational basis test that excludes morality as a rational basis has any place in determining what is protected by the Constitution.

Well, it's easy for you to say that, but I don't really think you mean it. This argument would permit laws against, say, dancing or halter tops or high-heeled boots or anything else a significant portion of the population found morally objectionable. After all, there is no constitutional right to smile, is there? Or to dance? Or to wear a hat on Sunday? Or to eat meat on Fridays? Once you propose the notion that advancing the moral views of the majority is a rational state interest, you open the door to all sorts of interesting laws. You can of course subscribe to that view - no one is going to stop you - but I have the feeling that were government to take that bit in its teeth you might very quickly find yourself on the other side of the issue.

[Former Lord of Winterfell]

I think this is a common problem when discussing an issue like gay marriage from a legal perspective. It divides people with a legal background from people without a legal background. There are many rights that should be legal but that are not Constitutionally required. The Constitution in fact requires *very* little in the grand scheme of things.

TrackerNeil:

Well, it's easy for you to say that, but I don't really think you mean it. This argument would permit laws against, say, dancing or halter tops or high-heeled boots or anything else a significant portion of the population found morally objectionable. After all, there is no constitutional right to smile, is there? Or to dance? Or to wear a hat on Sunday? Or to eat meat on Fridays? Once you propose the notion that advancing the moral views of the majority is a rational state interest, you open the door to all sorts of interesting laws. You can of course subscribe to that view - no one is going to stop you - but I have the feeling that were government to take that bit in its teeth you might very quickly find yourself on the other side of the issue.

Those are essentially the same point coming at it from different directions, so I'll respond to both.

I don't think it would be a violation of the federal constitution for a state to outlaw eating meat, and essentially cater just to vegetarians\vegans. I think it would be stupid. And as a citizen of that state, I'd feel that my "natural rights" were being violated, but that doesn't equate to a violation of my legal rights under the federal constitution. Not every bad thing or stupid idea has a remedy under the federal constitution. On the other hand, my state might have a constitution that prevents that, but perhaps not.

Anyway, I hope that clears up a bit where I'm coming from on this, because I eat meat on principle just to annoy vegetarians if there happen to be any around. :)

[TrackerNeil]

TrackerNeil:

Those are essentially the same point coming at it from different directions, so I'll respond to both.

I don't think it would be a violation of the federal constitution for a state to outlaw eating meat, and essentially cater just to vegetarians\vegans. I think it would be stupid. And as a citizen of that state, I'd feel that my "natural rights" were being violated, but that doesn't equate to a violation of my legal rights under the federal constitution. Not every bad thing or stupid idea has a remedy under the federal constitution. On the other hand, my state might have a constitution that prevents that, but perhaps not.

If you say so. Personally, I think the Constitution is not just a laundry list of do's and don't's, but an outline of the way we as a nation are supposed to conduct our social policy. Although there is no specific amendment about the eating of meat or smiling, it seems odd that I have the right to be secure in my person and property but that I can't have a bacon cheeseburger on Friday because my neighbors happen to think that's just sinful. One wonders how many things we could make unlawful with that model in mind. But, as I said before, if you say so.

[Former Lord of Winterfell]

If you say so. Personally, I think the Constitution is not just a laundry list of do's and don't's, but an outline of the way we as a nation are supposed to conduct our social policy. Although there is no specific amendment about the eating of meat or smiling, it seems odd that I have the right to be secure in my person and property but that I can't have a bacon cheeseburger on Friday because my neighbors happen to think that's just sinful. One wonders how many things we could make unlawful with that model in mind. But, as I said before, if you say so.

I'm not saying I want that either, because I don't. But I also don't want unelected judges telling the rest of us which morality is the correct one.

[TrackerNeil]

I'm not saying I want that either, because I don't. But I also don't want unelected judges telling the rest of us which morality is the correct one.

I agree. Instead, I want judges telling "the rest of us" that you can't make laws based solely on any morality, even that of the majority of voters. I want judges making certain that the laws we pass serve a rational policy purpose, and not just the narrow agenda of a group with enough lungpower and influence to ram through the legislature laws that do nothing but pass moral judgment on other people. That sounds pretty good to me, and if it's judicial tyranny then I would like some more of that tyranny, please.

Please note: We can go round and round about the contention that all laws are morally based, and no matter how many countervailing examples I provide some still hew to that opinion. So let's just agree to disagree on that issue and move along.